"[p]rior to the challenged decision, hospitals were allowed in the
city's R-3 and R-4 (high density) residential zones, subject to a conditional
use permit (CUP). The challenged decision adopts compatibility standards
for hospitals in all residential zones and, so long as a proposed hospital
complies with all applicable development standards, allows hospitals
without a CUP in R-3 and R-4 zones. The challenged decision also allows
hospitals on major collector or arterial streets within the city's other
residential zones, subject to a CUP."

Friends of Eugene, 46 Or LUBA at 725. In other words, under the ordinance, hospitals
are outright permitted uses in the city's high density residential zones. Additionally,
"[p]rior to the adopted amendments, hospitals were not allowed in industrial zones. The
amendments make hospitals permitted uses in industrial zones." Id. at 732. The city's
findings do not address a site-specific proposal. Instead, the city found that it is
"reasonable to assume that a hospital development located under the provisions of this
ordinance would occupy a site of no more than 40 acres." Of significance, however, the
text of the ordinance does not establish the maximum size of the site that a hospital
development could occupy.

On review, CHOICES contends that

"[t]he challenged amendments to the land use code allow hospitals
and other major medical facilities as outright permitted uses in areas the
comprehensive plan (the Metro Plan) designates and reserves for non-commercial uses, in violation of the requirement that the land use code be
consistent with the Metro Plan."

More specifically, CHOICES makes two assignments of error that, in essence, raise the
following two issues: (1) whether a hospital is an auxiliary use in a residential zone as
contemplated by the Metro Plan and (2) whether a hospital is a complementary use in an
industrial zone as contemplated by the Metro Plan.

The city and PeaceHealth respond that, because the Metro Plan's list of
auxiliary uses in residential zones is not exclusive, the city has authority to expand the
list. Further, they contend that, when compared with other auxiliary uses, hospitals are
similar in nature. Finally, the city and PeaceHealth assert that CHOICES did not preserve
the argument that it makes on review concerning the city's amendments to its industrial
zones but that, if it did, LUBA correctly determined that those amendments were
consistent with the Metro Plan.

We begin with CHOICES's first assignment of error concerning whether a
hospital is an auxiliary use in a residential zone. As LUBA indicated, Eugene Code (EC)
9.8065 expressly authorizes the city council to adopt ordinances that are consistent with
the Metro Plan, which is a regional comprehensive plan that was adopted by Lane County
and the cities of Eugene and Springfield and that is considered a part of the city's
comprehensive plan. Friends of Eugene, 46 Or LUBA at 723-24. As pertinent to this
case, the Metro Plan contains the following language regarding auxiliary uses in areas
designated for "residential" use:

"This category is expressed in gross acre density ranges. Using gross acres,
approximately 32 percent of the area is available for auxiliary uses, such as
streets, elementary and junior high schools, neighborhood parks, other
public facilities, neighborhood commercial services, and churches not
actually shown on the diagram. Such auxiliary uses shall be allowed within
residential designations if compatible with refinement plans, zoning
ordinances, and other local controls for allowed uses in residential
neighborhoods."

In Jaqua v. City of Springfield, 193 Or App 573, 91 P3d 817 (2004), we
addressed the meaning of the term "auxiliary uses" as used in the Metro Plan. In that
case, the City of Springfield adopted ordinances that amended "a regional land use plan
and a refinement of that plan, and * * * facilitate[d] the future rezoning of 99 acres within
the city for purposes of PeaceHealth's development." 193 Or App at 576. In Jaqua,
approximately 66 acres of the proposed site would have been devoted to the hospital and
33 acres would have been devoted to related commercial development. In reversing
LUBA's order, we held that the City of Springfield's decisions did not allow for auxiliary
uses as contemplated by the Metro Plan because the decisions would change the primary
use in the area from residential to commercial. We explained:

"In this context, 'auxiliary' means 'functioning in a subsidiary capacity' or
'supplementary.' Webster's Third New Int'l Dictionary 149 (unabridged ed
1993). See also State ex rel Jackson Creek Sand Co. v. Jackson County,
147 Or App 577, 938 P2d 773, rev den, 326 Or 57 (1997). Norman
Williams, Jr. and John M. Taylor, 4 American Land Planning Law § 79:8
(2003) (listing elements of ordinance definitions of 'accessory use' as
requiring that the use be related to the principal use, be 'subordinate and
clearly incidental to the principal use,' be customarily incidental to the
principal use, be located on the same lot as the principal use and not 'alter
the character of the area or be detrimental thereto * * *'); id. at § 79:12
through 79:15 (addressing 'principal use' and reviewing cases concerning
accessory uses as related to the principal use, as subordinate and incidental
to the principal use and as 'customarily incidental' to the principal use).
* * *

"* * * * *

"There is further support for understanding the meaning of the word
'auxiliary' as connoting something that functions or serves in a
supplementary capacity in the examples of auxiliary uses contained within
the plan itself. The Metro Plan grants authority to devote 32 percent of a
residential district to 'such' auxiliary uses as 'streets, elementary and junior
high schools, neighborhood parks, other public facilities, neighborhood
commercial services, and churches.' The use of residential lands for streets,
elementary and junior high schools, neighborhood parks, neighborhood
commercial services and churches are the kinds of land use that ordinarily
function or serve in a supplementary capacity to a residential neighborhood.
For example, streets and other public facilities exist in any residential area
to facilitate the residential use of the land, but they hardly constitute the
primary use of land designated as residential. The same can be said of
schools, neighborhood parks, neighborhood commercial services, and
churches.

"By comparison, the city's actions in this case change the universe of
primary use of the area from residential to nonresidential. The proposed
regional hospital project and adjoining medical and commercial services
authorized by the ordinances are not mere adjuncts or supplements to
residential use. They will become, in fact and in effect, the primary uses of
the land; and they will, by their intrinsic nature, change the overall use of
the land in the area from residential to commercial. We therefore conclude,
based on our understanding of the meaning of the word 'auxiliary' as used in
the context of the Metro Plan, that the kinds of uses contemplated by the
challenged ordinances are not permitted uses in an area designated for
residential use."

Jaqua, 193 Or App at 587-89 (emphasis and first omission in original). In summary, we
concluded in Jaqua that the Springfield ordinances were inconsistent with the Metro
Plan's authorization for "auxiliary uses."

We declined, however, to accept the petitioners' contention in Jaqua that
the Metro Plan's residential policy operated to prohibit every hospital or commercial use
in the pertinent areas. We explained:

"'[S]uch auxiliary uses' language refers to a wide range of permitted uses
including 'neighborhood commercial services.' It is certainly conceivable
that a hospital could be a neighborhood commercial use within the meaning
of the plan, at least to the same extent that other neighborhood commercial
uses are similarly auxiliary and supportive. The text and context of the
policy, however, require that such uses do not become the primary use in a
[medium density residential] designated area, such as occurs under the
ordinances. Thus, it is the extent and pervasiveness of the proposed change
in use that renders it legally incapable, within the meaning of the plan, of
being characterized as auxiliary uses. In summary, our disagreement with
LUBA's treatment of the city's ordinances under the Residential policy, a
disagreement dictated by the plain meaning of the word 'auxiliary,' requires
that we remand its decision."

Id. at 589.

Our decision in this case is largely controlled by our decision in Jaqua. As
we explained in Jaqua, the customary definition of "auxiliary" means "functioning in a
subsidiary capacity" or "SUPPLEMENTARY." Webster's Third New Int'l Dictionary 149
(unabridged ed 2002). We were unwilling in Jaqua, and we are unwilling now, to hold
that a hospital, clinic, laboratory, or similar use can never be an auxiliary use in a
residential zone under the Metro Plan. Unlike in Jaqua, the city's actions in this case are
not related to a particular proposal and piece of property. Nonetheless, the pertinent
question remains the same--that is, whether the city's ordinance changes "the universe of
primary use of the area from residential to nonresidential." Jaqua, 193 Or App at 589.

We turn to CHOICES's second assignment of error. CHOICES contends
that, even though the Metro Plan contemplates supporting commercial establishments as
complementary uses in industrial zones, a hospital is not a complementary use because
"the challenged amendments allow hospitals as primary industrial uses, with no limitation
on the amount of industrial land that can be consumed." (Emphasis in original.)

The city and PeaceHealth begin by asserting that the argument that
CHOICES raises on review was not raised to LUBA. Specifically, they argue:

"[T]he City's brief informed LUBA that the City's zoning code
(acknowledged by DLCD) allows numerous non-industrial uses in the
Metro Plan's industrially designated areas. The City provided LUBA with a
list of 15 such uses. LUBA agreed, stating that, '[u]nder [CHOICES's]
interpretation most if not all of those permitted uses would violate the
Metro Plan.' CHOICES now challenges the City's argument and evidence
on the basis that essentially commercial uses can only be allowed as
supporting uses for the primary industrial uses. In other words, CHOICES
now concedes that the industrial designations are not reserved for the two
specific uses it identified for LUBA, but now argues for the first time to
this Court that a hospital is not the right type of use for the industrial areas.
The Court should not consider CHOICES'[s] new challenge to the City's
evidence. The issue was not preserved by CHOICES in its brief to LUBA,
and to the extent that the issue[] was discussed at oral argument before
LUBA, it could not have been considered in LUBA's decision. LUBA is
prohibited from considering issues raised for the first time at oral argument.
OAR 661-010-0040(1)."

(Second set of brackets and emphasis in original; record citations and footnote omitted.)

We do not agree that CHOICES failed to preserve the issue that it raises on review
in this court. In its brief before LUBA, CHOICES asserted that

"the city made no analysis at all of the inconsistency with the Metro Plan's
definition of industrial uses. Heavy industrial lands are reserved for
industries that process large volumes of raw materials into refined products
and/or have significant external impacts. Light-medium industrial lands are
reserved for assembly and processing plants, warehouses, and
transportation or communication facilities. Campus industrial (special light
industrial) lands are reserved for regional distribution centers and research
parks. None of these uses is even remotely of the same nature as a
hospital."

(Internal quotation marks omitted.) As LUBA recognized, CHOICES's "argument is
reduced effectively to an argument that a hospital is not of the 'same nature' as campus
industrial uses." Friends of Eugene, 46 Or LUBA at 733. Because "campus" industrial
uses include complementary uses such as supporting commercial establishments serving
primary industrial uses and because CHOICES raised the issue whether a hospital is of
the same nature as a campus industrial use, CHOICES has preserved the argument that it
raises on review.

As to the merits, the ordinance allows hospitals as outright permitted uses
in all three of the city's industrial zones. CHOICES asserts, and we do not understand the
city and PeaceHealth to dispute, that the city's industrial zones roughly correspond to the
"campus," "light-medium," and "heavy" industrial designations in the Metro Plan. LUBA
reasoned, the "heavy industrial and light-medium industrial guidelines specifically
include light (or campus) industrial uses as well." Id. Thus, as did LUBA, we examine
the Metro Plan's guidelines concerning the "campus" industrial designation, which
provide:

"The primary objective of this designation is to provide opportunities for
diversification of the local economy through siting of light industrial firms
in a campus-like setting. The activities of such firms are enclosed within
attractive exteriors and have minimal environmental impacts, such as noise,
pollution and vibration, on other users and on surrounding areas. Large-scale light industrial uses, including regional distribution centers and
research and development complexes, are the primary focus of this
designation. Provision should also be made for small- and medium-scale
industrial uses within the context of industrial and business parks which
will maintain the campus-like setting with minimal environmental impacts. Complementary uses such as corporate office headquarters and supporting
commercial establishments serving primary uses may also be sited on a
limited basis."

1. Friends of Eugene (Friends) is also named as a petitioner on review. ORS
197.850(1) provides that "[a]ny party to a proceeding before the Land Use Board of Appeals
under ORS 197.830 to 197.845 may seek judicial review of a final order issued in those
proceedings." Friends, however, was dismissed as a party before LUBA for lack of standing.
Friends of Eugene v. City of Eugene, 46 Or LUBA 721, 722 (2004). Nonetheless, it is named as
a party on review and filed an opening brief with CHOICES. That brief, however, states, in part,
that

"the Final Opinion and Order from LUBA dismissed Petitioner
Friends of Eugene from the LUBA appeal for lack of standing,
because Friends of Eugene could not show that it appeared in the
local proceedings. Petitioner [CHOICES] had appeared in the
local proceedings, and thus parties below admitted that CHOICES
had adequately established its own standing and could bring the
appeal on its own. Petitioner CHOICES thus has standing as a
party to the LUBA proceeding to bring this appeal, under ORS
197.850(1)."

(Record citations omitted.) Further, at oral argument before this court, the attorney for
CHOICES and Friends stated that, on review, Friends was not challenging LUBA's dismissal and
was not asserting that it obtained its standing at LUBA. Thus, under the circumstances of this
case and based on the attorney's statements at oral argument and in the opening brief, we
understand that the attorney for Friends has conceded that it is not a party on review.

Additionally, at oral argument in this case CHOICES requested the opportunity to
submit affidavits to establish its constitutional standing. After allowing the parties to submit
supplemental briefing, we issued an opinion in which we held that CHOICES has statutory
standing and could submit evidence demonstrating its constitutional standing for the first time on
judicial review. Friends of Eugene v. City of Eugene, 195 Or App 20, 22, 30, 96 P3d 1256
(2004). Thereafter, CHOICES submitted affidavits concerning the standing of two individuals
who are on its steering committee. We are satisfied that CHOICES has constitutional standing in
this court. See, e.g., WaterWatch v. Water Resources Commission, 193 Or App 87, 98, 88 P3d
327, rev allowed, 337 Or 476 (2004) ("We may consider the practical effects on specific
individual members of an organization in our constitutional justiciability analysis.").

2. To the extent that the city and PeaceHealth assert that LUBA, and this court, must
defer to the city's interpretation of its own land use regulation, we reiterate our reasoning in
Jaqua:

"We are mindful of the city and PeaceHealth's view that
LUBA, and we, are obliged to defer to the city's understanding of
the terms of its own land use regulations. That obligation, and the
construction of local ordinances, is mandated by ORS 197.829 and
Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992).
However, it does not extend to affirming a local interpretation that
alters the common definition of the operative words in the code. In
short, we are not obliged to affirm an interpretation that is
'inconsistent with the express language of the comprehensive plan
or land use regulation[.]' ORS 197.829(1)."

3. We note that LUBA concluded that the city's inclusion of hospitals as permitted
uses in industrial zones was permissible because

"[t]he city interpreted the guidelines as permitting hospitals to be
established in industrial zones because a hospital development site,
including clinics and laboratories, is the kind of 'campus-like
setting with minimal environmental impacts' that are envisioned."

Friends of Eugene, 46 Or LUBA at 733. LUBA's conclusion, however, is not supported by the
express language of the Metro Plan that essentially provides that industrial zones are to be used
for industrial uses. Further, as we have already explained, the ordinance is not consistent with
the exceptions to that general proposition in the Metro Plan for supporting commercial
establishments.